B-6150, OCTOBER 14, 1939, 19 COMP. GEN. 433

B-6150, OCTOBER 14, 1939, 19 COMP. GEN. 433

PAY - ACTIVE DUTY - RETIRED OFFICERS - WHETHER BASED ON PAY GRADE OR GRADE AND RANK FOR PRECEDENCE AND TITLE SECTION 17 OF THE JOINT PAY ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDING THAT RETIRED OFFICERS OF THE ARMY, NAVY, ETC., BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE,"SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES," CONTEMPLATES FULL PAY AND ALLOWANCES OF THE OFFICER'S PAY GRADE ON THE RETIRED LIST AND NOT NECESSARILY THE PAY OF HIS GRADE AND RANK FOR PRECEDENCE AND TITLE, WHICH, UNDER THE APPLICABLE STATUTES, MAY BE DIFFERENT THAN HIS PAY GRADE. A MARINE CORPS OFFICER ADVANCED FROM CAPTAIN TO MAJOR UPON RETIREMENT UNDER SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950, IS ENTITLED TO THE ACTIVE-DUTY PAY AND ALLOWANCES OF A MAJOR OF HIS LENGTH OF SERVICE WHEN HE IS LAWFULLY ON ACTIVE DUTY, SINCE THE SAID SECTION SPECIFICALLY PROVIDES FOR RETIRED PAY OF THE GRADE TO WHICH ADVANCED UPON RETIREMENT. MARINE CORPS OFFICERS ADVANCED TO NEXT HIGHER RANK FOR TITLE AND PRECEDENCE BUT HAVING THE LOWER RANK FOR PAY PURPOSES UPON RETIREMENT UNDER SECTION 12 (L) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, ARE ENTITLED, WHEN ON ACTIVE DUTY, ONLY TO ACTIVE-DUTY PAY OF THE PAY GRADE ON WHICH THEIR RETIRED PAY IS BASED. THE RETIRED PAY OF MARINE CORPS OFFICERS ADVANCED TO THE NEXT HIGHER GRADE UPON RETIREMENT PURSUANT TO THE PROVISIONS OF THE ACT OF JANUARY 16, 1936, 49 STAT. 1092, BEING LIMITED BY SAID ACT TO THE RETIRED PAY OF THE GRADE FROM WHICH PROMOTED, THE "FULL PAY AND ALLOWANCES" TO WHICH THEY ARE ENTITLED WHEN LAWFULLY ON ACTIVE DUTY IS THE PAY AND ALLOWANCES OF THE PAY GRADE ON WHICH THEIR RETIRED PAY IS COMPUTED, THAT IS, THE RANK OR GRADE PRIOR TO THE PROMOTION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE ACTING SECRETARY OF THE NAVY, OCTOBER 14, 1939:

I HAVE YOUR REQUEST OF SEPTEMBER 21, 1939, FOR DECISION OF QUESTIONS PRESENTED IN LETTER DATED SEPTEMBER 19, 1939, FROM THE PAYMASTER, HEADQUARTERS UNITED STATES MARINE CORPS, AS FOLLOWS:

1. THIS OFFICE HAS RECEIVED COPIES OF ORDERS, AS PER ENCLOSURE (COPY OF ORDERS FOR ASSIGNMENT TO ACTIVE DUTY IN THE CASE OF MAJOR FRANK D. CREAMER, U.S. MARINE CORPS, RETIRED, AND COPY OF ORDERS PLACING THIS OFFICER ON THE RETIRED LIST), ASSIGNING CERTAIN RETIRED OFFICERS OF THE MARINE CORPS TO ACTIVE DUTY BY DIRECTION OF THE ACTING SECRETARY OF THE NAVY AND WITH THE CONSENT OF THE OFFICERS CONCERNED.

2. A GROUP OF CAPTAINS OF THE MARINE CORPS WERE RETIRED ON JUNE 30, 1939, UNDER THE PROVISIONS OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, WHICH READS AS FOLLOWS:

"/K) OFFICERS NOW IN THE GRADES OF LIEUTENANT COMMANDER AND LIEUTENANT, AND LIEUTENANTS (JUNIOR GRADE) NOW ADDITIONAL NUMBERS ON THE ACTIVE LIST OF THE NAVY BY REASON OF THE OPERATION OF THE ACT OF MARCH 3, 1931 (46 STAT. 1483), AS AMENDED, SHALL, AT THEIR OWN REQUEST, IN LIEU OF THE HONORABLE DISCHARGE PROVIDED IN SUBSECTION (C) OF THIS SECTION, BE CONTINUED ON THE ACTIVE LIST OF THE NAVY UNTIL THE COMPLETION OF THE PERIOD OF SERVICE DESIGNATED IN THE SAID ACT, AS AMENDED, AND SHALL THEN BE RETIRED AS PROVIDED THEREIN, BUT WHEN THEY HAVE TWICE FAILED OF SELECTION AS BEST FITTED THEY SHALL BECOME INELIGIBLE FOR CONSIDERATION BY SUBSEQUENT SELECTION BOARDS FOR PROMOTION TO LIEUTENANT: PROVIDED, THAT LIEUTENANTS WHO SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918, AND WHO SHALL HAVE COMPLETED NOT LESS THAN TWENTY-ONE YEARS OF SERVICE SHALL ON RETIREMENT AS PROVIDED IN THIS SUBSECTION BE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST WITH THE RETIRED PAY OF THAT GRADE.' ( ITALICS SUPPLIED.)

3. OTHER OFFICERS RETIRED UNDER THE PROVISIONS OF SECTION 12 (L) OF THE ACT OF JUNE 23, 1938, HAVE LIKEWISE BEEN ASSIGNED TO ACTIVE DUTY. SECTION 12 (L) PROVIDES AS FOLLOWS:

"/L) ALL LINE OFFICERS OF THE NAVY WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, WHEN RETIRED, EXCEPT AS PROVIDED IN SECTION 12 (H) OF THE ACT, SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE AND WITH THREE-FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.'

4. OFFICERS ADVANCED TO THE NEXT HIGHER GRADE ON THE RETIRED LIST, IN ACCORDANCE WITH THE ACT OF JANUARY 16, 1936 (49 STAT. 1092), MAY ALSO BE ASSIGNED TO ACTIVE DUTY.

5. SECTION 17 OF THE ACT OF JUNE 10, 1922, PROVIDES, IN PART, AS FOLLOWS:

"* * * RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, AND COAST AND GEODETIC SURVEY BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE AND RETIRED WARRANT OFFICERS AND ENLISTED MEN OF SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES.'

6. THE QUESTION NOW ARISES AS TO WHAT PAY AND ALLOWANCES ARE PROPERLY PAYABLE TO CAPTAINS IN THE MARINE CORPS WHO WERE RETIRED UNDER THE PROVISIONS OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, AND ADVANCED TO THE GRADE OF MAJOR ON THE RETIRED LIST WITH THE RETIRED PAY OF THAT GRADE, AND WHAT PAY AND ALLOWANCES ARE PROPERLY PAYABLE IN THE CASES OF OFFICERS ADVANCED TO THE NEXT HIGHER GRADE IN ACCORDANCE WITH SECTION 12 (L) OF THE ACT OF JUNE 23, 1938, OR IN ACCORDANCE WITH THE ACT OF JANUARY 16, 1936, WHO HAVE BEEN OR MAY BE ASSIGNED TO ACTIVE DUTY.

IT MAY BE REMARKED AT THE BEGINNING THAT GRADE OR RANK DOES NOT NOW NECESSARILY DETERMINE THE PAY TO WHICH AN OFFICER MAY BE ENTITLED; THAT IS, THERE IS NOTHING REQUIRING THE CONGRESS TO PROVIDE UNIFORMITY OF PAY FOR OFFICERS OF THE SAME RANK OR GRADE AND LENGTH OF SERVICE, AND THE CONGRESS HAS ON SEVERAL OCCASIONS IN RECENT STATUTES PROVIDED ADVANCED RANK WITHOUT GRANTING THE PAY OF SUCH ADVANCED RANK. SEE, FOR EXAMPLE, THE ACT OF JUNE 21, 1930, 46 STAT. 793, PROVIDING FOR ADVANCEMENT ON THE RETIRED LIST OF OFFICERS OF THE ARMY (WITH CERTAIN EXCEPTIONS), NAVY, MARINE CORPS, AND COAST GUARD WHO WERE THEN OR SHOULD THEREAFTER BE RETIRED TO THE HIGHEST GRADE HELD BY THEM DURING THE WORLD WAR WITH A PROVISO THAT NO INCREASE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHOULD RESULT FROM SUCH ADVANCEMENT. ALSO, THE ACT OF JANUARY 16, 1936, 49 STAT. 1092, TO WHICH THE PAYMASTER REFERS, PROVIDES:

THAT ALL OFFICERS OF THE NAVY AND MARINE CORPS WHO HAVE BEEN RETIRED OR WHO MAY HEREAFTER BE RETIRED FOR PHYSICAL DISABILITY AND WHO HAVE BEEN COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT WITH THE ENEMY DURING THE WORLD WAR BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED SHALL BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE: PROVIDED, THAT SUCH PROMOTION SHALL NOT CARRY WITH IT ANY INCREASE IN PAY. AND SECTIONS 12 (F) AND 12 (L) OF THE LINE PROMOTION ACT OF JUNE 23, 1938, MAKE PROVISION, UNDER SOME CIRCUMSTANCES, FOR A RETIRED PAY DIFFERENT FROM THE NORMAL PAY OF THE GRADE ACCORDED AT RETIREMENT.

AS OF POSSIBLE APPLICATION TO THE QUESTIONS PRESENTED IT IS APPROPRIATE TO REFER TO THE ACT OF MARCH 4, 1911, 36 STAT. 1354 (10 U.S.C. 1014 AND 34 U.S.C. 394), WHICH PROVIDES:

THAT COMMISSIONED OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS ON THE RETIRED LIST WHOSE RANK HAS BEEN OR SHALL HEREAFTER BE ADVANCED BY OPERATION OF OR IN ACCORDANCE WITH LAW SHALL BE ENTITLED TO AND SHALL RECEIVE COMMISSIONS IN ACCORDANCE WITH SUCH ADVANCED RANK.

THE ACT OF OCTOBER 1, 1890, 26 STAT. 562 (10 U.S.C. 932), PROVIDED THAT AN ARMY OFFICER (IN CERTAIN LIMITS AS TO GRADE) WHO ON EXAMINATION FOR PROMOTION IS FOUND INCAPACITATED FOR SERVICE BY REASON OF A PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY SHALL "BE RETIRED WITH THE RANK TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED" AND IT WAS HELD BY THE COURT OF CLAIMS IN CLOUD V. UNITED STATES, 43 CT.1CLS. 69, THAT WHILE THIS CONFERRED THE ADVANCED RANK AS DISTINGUISHED FROM THE OFFICE IT NEVERTHELESS ENTITLED THE OFFICER TO PAY OF SUCH ADVANCED RANK. THE NAVY ACT OF MARCH 4, 1911, 36 STAT. 1267 (34 U.S.C. 390) IS TO THE SAME EFFECT AS THE ARMY ACT OF 1890. OFFICERS AFFECTED BY THESE PROVISIONS SEEM TO HAVE BEEN ACCORDED THE ADVANCED RANK AND PAY ON THE RETIRED LIST, AND THE PRACTICE SEEMS TO HAVE BEEN, WHEN SUCH OFFICERS WERE LAWFULLY ORDERED TO ACTIVE DUTY, TO PAY ACTIVE DUTY PAY AND ALLOWANCES IN SUCH ADVANCED RANK. THE ACT OF MARCH 4, 1915, 38 STAT. 1190, REWARDED THE SERVICES OF CERTAIN OFFICERS OF THE ARMY, NAVY, AND PUBLIC HEALTH SERVICE IN CONNECTION WITH THE CONSTRUCTION OF THE PANAMA CANAL AND PROVIDED, BY SECTION 3, THAT OFFICERS OF THE ARMY AND NAVY DETAILED FOR DUTY WITH THE ISTHMIAN CANAL COMMISSION ON THE ISTHMUS OF PANAMA FOR MORE THAN THREE YEARS, IF NOT ADVANCED BY OTHER PROVISIONS OF THE ACT,"SHALL BE ADVANCED ONE GRADE IN RANK UPON RETIREMENT.' SUCH OFFICER WHEN ORDERED TO ACTIVE DUTY DURING THE WORLD WAR (AND BEFORE PROMOTION TO TEMPORARY ADVANCED RANK) WERE PAID THE PAY AND ALLOWANCES OF THE ADVANCED RANK ACCORDED ON RETIREMENT.

THE PROVISO OF SECTION 12 (K) DIRECTS THAT THE OFFICERS THEREIN DESCRIBED "SHALL ON RETIREMENT * * * BE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST WITH THE RETIRED PAY OF THAT GRADE.' UNDER THIS PROVISION THE INDIVIDUAL IS AN OFFICER OF THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST AND IS SPECIFICALLY ENTITLED TO THE RETIRED PAY OF THAT GRADE. WHEN ORDERED TO ACTIVE DUTY SECTION 17 OF THE JOINT PAY ACT, 42 STAT. 632, PROVIDES THAT RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES. UNDER THE CITED ACTS OF 1930 AND 1936 IT IS EVIDENT THAT SOME OFFICERS ON THE RETIRED LIST HAVE ONE GRADE OR RANK FOR PRECEDENCE AND TITLE AND ANOTHER GRADE OR RANK FOR PAY PURPOSES. THE JOINT PAY ACT BEING AN ACT ESTABLISHING PAY, IN GIVING FULL PAY AND ALLOWANCES WHILE ON ACTIVE DUTY, CONTEMPLATES FULL PAY AND ALLOWANCES OF THE OFFICER'S PAY GRADE ON THE RETIRED LIST.

ACCORDINGLY, YOU ARE INFORMED THAT, AS THE ACT CONFERRING THE ADVANCED GRADE ON RETIREMENT OF MAJOR CREAMER SPECIFICALLY PROVIDED HE SHOULD HAVE THE RETIRED PAY OF THAT GRADE, HE IS ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A MAJOR OF HIS LENGTH OF SERVICE WHEN HE IS LAWFULLY ON ACTIVE DUTY.

AS TO OFFICERS WHO UPON RETIREMENT RECEIVE THE BENEFITS OF SECTION 12 (L) OF THE LINE PROMOTION ACT OF 1938, SEE DECISION OF FEBRUARY 14, 1939, 18 COMP. GEN. 655, ANSWER TO THE SIXTH QUESTION, PAGES 666-667, AND SEE, ALSO, DECISION B-5287 TO THE SECRETARY OF THE NAVY, SEPTEMBER 27, 1939, CASE OF COMMANDER HANSEN AT PAGES 6 AND 7 OF THE MANUSCRIPT DECISION. THE PROMOTION PROVIDED FOR IN SECTION 12 (L) IS NOT CUMULATIVE WITH ANY OTHER PROMOTION INCIDENT TO RETIREMENT. SEE 18 COMP. GEN. 655, 667, IN WHICH IT WAS SAID:

* * * THE PROMOTION COINCIDENT WITH RETIREMENT AUTHORIZED BY SECTION 12 (L) IS ALSO AN HONORARY PROMOTION IN RANK WITH THREE-FOURTHS OF THE ACTIVE -DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT, THAT IS, THE GRADE FROM WHICH PROMOTED COINCIDENT WITH RETIREMENT. * * *

AN OFFICER IN SUCH A SITUATION HAS THE ADVANCED RANK FOR TITLE AND PRECEDENCE BUT FOR PURPOSES OF PAY ON THE RETIRED LIST HE HAS THE NEXT LOWER RANK OR GRADE. THE FULL PAY AND ALLOWANCES OF HIS GRADE WHEN LAWFULLY ON ACTIVE DUTY ARE THE PAY AND ALLOWANCES OF THE PAY GRADE ON WHICH HIS RETIRED PAY IS BASED. IN VIEW OF THE SPECIFIC PROVISION CONTAINED IN THE ACT OF JANUARY 16, 1936, THAT PROMOTION THEREUNDER "SHALL NOT CARRY WITH IT ANY INCREASE IN PAY" THE OFFICER REMAINS IN THE PAY GRADE OF THE LOWER RANK FROM WHICH PROMOTED AND WHEN LAWFULLY ON ACTIVE DUTY IS ENTITLED TO THE FULL PAY AND ALLOWANCES OF THE PAY GRADE ON WHICH HIS RETIRED PAY IS COMPUTED, THAT IS, THE RANK OR GRADE PRIOR TO THE PROMOTION ACCORDED UNDER THAT ACT.